Reese v. State

• Decision Date: 25 October 2022
• Docket Number: S22A0521
• Citation: 314 Ga. 871,880 S.E.2d 117
• Parties: REESE v. The STATE.
• Court: Georgia Supreme Court

314 Ga. 871

880 S.E.2d 117

REESE

v.The STATE.

S22A0521

Supreme Court of Georgia.

Decided: October 25, 2022

David Joseph Walker, Georgia Public Defender Council Appellate Division, PO Box 7624, Macon, Georgia 31209, for Appellant.

Patricia B. Attaway Burton, Deputy Attorney General, Paula Khristian Smith, Senior Assistant Attorney General, Christopher M. Carr, Attorney General, Meghan Hobbs Hill, Assistant Attorney General, Department of Law, 40 Capitol Square, S.W., Atlanta, Georgia 30334, Robert Brandon Faircloth, A.D.A., Louie Craig Fraser, District Attorney, Dublin Judicial Circuit District Attorney's Office, P.O. Box 2029, Dublin, Georgia 31040, Leslie Loraine Ray, A.D.A., Dublin Judicial Circuit District Attorney's Office, P.O. Box 2029, Dublin, Georgia 31021, for Appellee.

Boggs, Chief Justice.

Appellant Jacarey Reese challenges his 2019 conviction for felony murder in connection with the shooting death of Stacy Devero.¹ Appellant's first trial ended with a hung jury. At his second trial, the defense argued both that Appellant did not shoot Devero and that, even if he did, he was legally justified in doing so. Appellant contends that the trial court committed reversible error when it denied his request to give a modified version of the former pattern jury instruction on affirmative defenses in light of this Court's then-recent decision in McClure v. State , 306 Ga. 856, 834 S.E.2d 96 (2019), and when it overruled his objections to the prosecutor's repeated arguments in closing that Appellant was legally precluded from claiming justification because he never admitted that he shot Devero. Appellant also contends that the trial court committed plain error in responding to a jury note showing that the jury was swayed by the prosecutor's improper arguments and therefore misunderstood the law of justification.

As explained below, under the facts of this case, the trial court erred in denying Appellant's request to give a modified version of the former pattern jury instruction on affirmative defenses in light of McClure . As a result of that initial error, the trial court overruled Appellant's objections to the prosecutor's repeated misstatements of the law of justification during closing arguments, which the note sent out by the jury during deliberations showed had misled the jury. Moreover, the court's response to the jury's note did nothing to correct the jury's misunderstanding of the law and indeed may have worsened it. Accordingly, we cannot say that the court's instructional error was harmless, and we therefore reverse Appellant's conviction and sentence for felony murder. However, we also conclude that the evidence presented at trial was legally sufficient to support Appellant's conviction, so the State may retry him if it so chooses.

1. Viewed in the light most favorable to the verdicts, the evidence at trial showed the following. On October 8, 2018, Appellant arranged through his friend Jamil Thompkins to buy two ounces of marijuana from Devero for about $450. Shortly before 6:00 p.m., DaQuavius Stanley, Appellant's half-brother, drove him to Thompkins’ apartment complex, where Appellant got out at Thompkins’ building and walked around to the back. Stanley drove on to Building D and backed into a spot at the far end of a row of parking spaces located directly in front of that building. A surveillance camera trained on Building D and the parking area out front captured video that was later played for the jury.

A few minutes after Stanley arrived and parked at the far end of the row of parking spaces, Jonathan Linder arrived in a Toyota sedan with Devero in the front passenger seat, pulled into the first spot in the row of parking spaces, and parked. Linder and Devero got out, walked to the rear of the Toyota, and leaned on either side of the trunk. A minute later, Appellant, who was carrying a bright blue book bag, walked up to Linder, and Devero directed Appellant to go around the Toyota and stand by the front passenger-side door while they waited for Thompkins. A few minutes later, Thompkins, who was carrying a black book bag, walked up to Linder. Appellant then opened the door of the Toyota and started to get into the front seat but stopped when Thompkins’ cell phone rang and Thompkins answered the call. Thompkins stood there talking on his cell phone for the next several minutes.

A few minutes into the call, Devero said that they did not need to wait for Thompkins, and Appellant took off his book bag and sat in the Toyota, leaving the door open. Linder walked to the front driver-side door, which also was open, stuck his head inside, and spoke to Appellant for about ten seconds before walking back toward the trunk.

While Linder was talking to Appellant, Thompkins finished his call, took off his book bag, and reached inside it, leaving his hand there during what happened next.

A few seconds after Linder finished talking to Appellant, Appellant called to Devero, who had been leaning heavily on the trunk of the Toyota, and Devero walked up to the open front passenger-side door by Appellant. Devero put his right hand on the edge of the door, leaned in slightly for a couple of seconds, leaned back for a couple of seconds, and leaned in again for a couple of seconds more. Suddenly, Devero stepped back quickly, reaching with his right hand for the nine-millimeter pistol on his right hip. As Devero started to lift his gun, Appellant bolted out of the car with a gun in his left hand and shot Devero once in the face. The bullet struck Devero on the right side of his chin, passed in a downward direction through his neck and his right carotid artery, and lodged under the skin behind his right shoulder. Devero's right arm went limp, and he fell to the ground on top of his gun as Appellant stumbled past him toward Stanley's car. Linder ran to a grassy area behind the Toyota, and Thompkins slowly backed away.

It took Appellant several seconds to reach Stanley's car, and he crouched down on the other side of it. Devero managed to get up, use his left hand to pick up his gun, and toss it clumsily to the grassy area where Linder had run. Stanley then sped off toward the rear of the apartment complex with Appellant in his car as Devero briefly walked toward Linder and Linder picked up Devero's gun. After a few seconds, Linder and Devero turned around, ran back to the Toyota, got in, and drove out of the apartment complex. Once Stanley saw that the Toyota had left, he turned around, drove back past Building D, and exited the apartment complex headed in the opposite direction from the Toyota.

Linder drove Devero to Fairview Park Hospital, where Devero died. At approximately 6:15 p.m., Detective Allen Harris of the Dublin Police Department, who was at the hospital to investigate another case, was informed that a man with a gunshot wound had just arrived. Detective Harris spoke with Linder, who told him where the shooting took place and said that Devero was shot during a drug deal that Thompkins set up. Detective Harris briefed Lieutenant Stacy Sapp on the situation, and Lieutenant Sapp went to Thompkins’ apartment complex with other officers and eventually arrested Thompkins. Detective Harris also went to the apartment complex but stayed only about ten minutes before leaving to go to the police station to formally interview Linder. Detective Harris showed Linder an array containing photographs of Appellant and Thompkins, but Linder did not identify either of them. Linder later fled the state and could not be located to testify at either of Appellant's trials.

Detective Harris interviewed Thompkins later that evening at the police station. At the apartment complex, Sergeant Lee Washburn recovered a spent nine-millimeter shell casing from the space where the Toyota had been parked. The Toyota was towed from the hospital to the police station, where Officer Patti Fountain found Appellant's blood-soaked open blue book bag in the floorboard of the front passenger seat and Devero's blood-covered nine-millimeter pistol in the floorboard of the driver's seat.

Sometime before 6:00 a.m. on the day after the shooting, Detective Harris reviewed surveillance video from the apartment complex, which was later played for the jury at each of Appellant's trials. Detective Harris knew Appellant and Thompkins from the community and recognized them on the video. Lieutenant Sapp also reviewed the video and was able to locate Stanley at his job based on the car that Stanley was driving in the video. Stanley was taken into custody shortly after 6:00 a.m. and interviewed by Detective Harris before being released.

At around 7:30 a.m., the police arrested Appellant at work and took him to the police station, where he waived his rights under Miranda v. Arizona , 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was interviewed for approximately 15 minutes. The interview was audio and video recorded and later played for the jury at each of Appellant's trials. Detective Harris told Appellant at the outset that he needed Appellant to be honest about everything; that if he lied, it would just get him "deeper into this"; that Detective Harris already knew that Appellant "was there"; and that he just needed to know what Appellant's involvement was, starting from the previous afternoon.

Appellant provided a thorough account of his whereabouts and actions on the afternoon and evening of the previous day, including a detailed timeline from 2:30 p.m. to 9:50 p.m., but left out his trip to Thompkins’ apartment complex and the shooting.² Detective Harris asked, "Is that it?" and Appellant replied, "Yeah." Detective Harris told Appellant that he did not tell the truth and that he had Appellant "on video, plain as day, with the book bag on" at Thompkins’ apartment complex and asked Appellant to tell him the truth. Appellant said, "That's the truth. I promise you, that's the truth."

Detective Harris then said, "It's not. I'm telling you, I have you on video,...